On 12 April 2019, the ICC Pre-Trial Chamber II unanimously rejected the Prosecutor's request to open an investigation into Afghanistan. On 3 November 2017, the ICC prosecutor had requested authorization to open an investigation into war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as crimes against humanity closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.

The quick read

Afghanistan faced several periods of civil war since the 1970s and experienced over a decade of conflict following the United States-led invasion of the country after the 11 September 2001 attacks.

In 2007, the ICC prosecutor announced a preliminary examination to determine whether conduct by Afghan and foreign government forces, as well as anti-government forces such as the Taliban, after 1 May 2003 may amount to war crimes and crimes against humanity.

Afghanistan is an ICC member state, having acceded to the Rome Statute in February 2003

In 2017, Afghanistan enacted a new criminal code incorporating provisions on war crimes, crimes against humanity, genocide, and the crime of aggression - the four core international crimes within the subject matter jurisdiction of the ICC.

Such implementing legislation, which includes provisions on command responsibility as well as recruitment of soldiers under 18 years of age, will prove crucial to Afghanistan's ability to address Rome Statute crimes within the domestic jurisdiction.

Afghanistan has not ratified the Agreement on Privileges and Immunities of the ICC or the Kampala Amendments to the Rome Statute.

Background

After the 11 September 2001 attacks by Taliban members in the United States, the US-led invasion of Afghanistan resulted in over ten years of war in the country. The US-led coalition of allies, joined by the North Atlantic Treaty Organization in 2003, launched air strikes and ground operations in Afghanistan to oust the Taliban from power and dismantle the al-Qaeda terrorist group responsible for the attacks on the World Trade Center in New York.
A transitional Afghan government was installed in 2002, and the UN Security Council subsequently established the International Security Assistance Force (ISAF) by Resolution 1386. Intended to assist the Afghan government in combating the Taliban and other armed groups, ISAF later came under NATO command.
International forces withdrew major combat missions from Afghanistan in December 2014, although a new, smaller group of forces remains present to offer training and assistance to Afghan security forces.
From the start of the war to the withdrawal of international forces, 26,000 are reported to have died and over 29,900 civilians have been injured.

ICC situation

In 2007, the Prosecutor of the ICC started a preliminary examination into Afghanistan. 10 years later, on 20 November 2017, she filed her request to open an investigation before the judges of the Pre-Trial Chamber, which was rejected on 12 April 2019. Even though the legal criteria of jurisdiction and admissibility were met, the judges argued that an investigation “would not serve the interests of justice”. They argued that a possible investigation was unlikely to lead to effective prosecutions in a reasonable timeframe due to limited cooperation, the difficulties to secure evidence and the time elapsed between the crimes and the Prosecutor’s request. They also pointed out that the Court needs to use its scarce resources prioritizing activities that would have better chances to succeed. The Prosecutor of the ICC noted that it was the first time an investigation was not authorized on the grounds of the interests of justice, provoking many open questions. On 7 June 2019, the OTP filed their request for leave to appeal, to challenge the decision that was perceived as a big blow for the victims.

The preliminary examination:

During the preliminary examination, the Prosecutor looked into alleged crimes against humanity and war crimes committed on Afghan territory and territories of other States Parties, since 1 May 2003 and since 1 July 2002 respectively. In her assessment, the OTP has found a reasonable basis to believe that war crimes and crimes against humanity were and continue to be committed by members of Afghan and foreign government forces, including the CIA and American forces, and by anti-government forces such as the Taliban. The OTP also found that no relevant national investigations or prosecutions have been conducted or are ongoing against those who appear most responsible for the crimes allegedly committed by all three conflict-parties.

Cooperation

After the Prosecutor requested the opening of an investigation, US threats towards the Court intensified. One week before the judgement, the visa of the Prosecutor of the ICC was revoked. In response to the direct threats, the Prosecutor stated that she will continue to pursue her duties for the Court, in The Hague, “without fear or favor” and would continue to travel to the US.

Afghanistan acceded to the Rome Statute in 2003 and has largely cooperated with the OTP preliminary examination on its territory. Civil society, however, remains concerned about the possible role of the US and other occupying forces to influence the scope of Afghanistan’s cooperation with the ICC.

Afghanistan’s obligation as an ICC member state to cooperate includes cooperation with the OTP examination of conduct – including alleged detainee abuse – by Afghanistan’s international partners in the US-led invasion and occupation of Afghanistan after 1 May 2003.

In a positive show of cooperation, the second vice president of Afghanistan made a statement in 2016 welcoming an ICC visit to Afghanistan. The government also announced the creation of a technical committee of government officials and the Afghanistan Independent Human Rights Commission (AIHRC) to broker cooperation with the ICC.

National prosecutions

Until 2017, despite its obligations as an ICC member state, Afghanistan had not updated its 1976 Criminal Code to cover international crimes, which frustrated domestic efforts to deliver justice to victims of gross human rights violations.

In 2017, Afghanistan enacted a new criminal code incorporating provisions on war crimes, crimes against humanity, genocide, and the crime of aggression - the four core international crimes within the subject matter jurisdiction of the ICC. Such implementing legislation, which includes provisions on command responsibility as well as recruitment of soldiers under 18 years of age, will prove crucial to Afghanistan's ability to address Rome Statute crimes within the domestic jurisdiction.

The Criminal Code will enter into force in 2018.

At the request of the Afghan government, AIHRC charted an “Action Plan for Peace, Reconciliation and Justice in Afghanistan”, launched by President Hamid Karzai in 2006, to instruct that the commission of war crimes, crimes against humanity, or obvious human rights violations “does not fall into the scope of amnesty on the basis of the principles of the sacred religion of Islam and internationally accepted standards.”

Contrary to the Action Plan, the 2007 “Law on Public Amnesty and National Stability” granted legal immunity to “all political parties and belligerent groups who fought each other during the past two and a half decades”, without any temporal limit to the law’s application or any exception in the case of international crimes.

The move, viewed as a violation of the fundamental right to redress for victims of gross human rights violations, spurred a vehement reaction from national and international NGOs, including concerns about Afghanistan’s willingness and the ability of the Afghan legal order to put an end to impunity.

Only one high-ranking member of an armed group has been put on trial in Afghanistan, for crimes committed in 1992-93 – prior to the passing of the amnesty law, but also prior to ICC jurisdiction. The government has launched only a limited number of proceedings against its own alleged perpetrators, such as two officials from the National Directorate of Security.

Allegations of detainee abuse by US forces have resulted in one conviction – of a former Central Intelligence Agency independent contractor – and the court-martialing of a few dozen members of the military. Considering that these individuals were deemed responsible for isolated incidences of cruelty towards Afghan prisoners, civil society has alleged that the United States has not genuinely carried out an investigation.

Regarding the October 2015 aerial bombardment of a Médecins Sans Frontières hospital in Kunduz by US armed forces, a NATO investigation concluded that the bombardment resulted from human error. The only outcome was the suspension of the individuals most closely associated with the incident.

Civil society advocacy

Local civil society groups in Afghanistan have played a pivotal role in advocating for victims’ concerns and issues of justice and accountability to be included in Afghanistan’s transitional justice process.

In March 2005, the Afghan government appointed an inter-ministerial Commission with senior representatives from the ministries of foreign affairs, justice, and the interior; from the Supreme Court; from the University of Kabul; and from the civil society organization Afghan Professional Alliance for Minority Rights. The goal of the Commission was to evaluate and determine steps toward implementation of the Rome Statute into national laws.

During a March 2006 roundtable, the Commission expanded its membership to other actors, including civil society organizations. The Afghanistan Independent Human Rights Commission prepared a preliminary draft on ICC implementing legislation, which received feedback from various actors and was then presented to the Ministry of Justice.

Civil society in Afghanistan and the Middle East have worked with the Coalition for the ICC facilitating discussions with the government and raising awareness of the significance of ICC activities in the country. These efforts have been key in laying the groundwork for Afghan leaders and the general public to engage in serious debates on the role of justice and the importance of an inclusive peace process.